The Perils of Ignoring Supervisor Misconduct.

• Author: Rogers, Amber M.
• Position: FOREFONT

Since its inception in 1998, the Faragher-Ellerth defense has been a backbone of defending employers against sexual harassment and vicarious liability claims where an employee did not suffer a tangible employment action. In companion cases that year, the U.S. Supreme Court established the affirmative defense for employers to use when a plaintiff attempts to impute liability to the employer for a supervisor's harassment. Under Faragher-Ellerth, an employer must show: 1) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and 2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

But even tried and true defenses are being scrutinized and reexamined in the #MeToo era. Recently, the Third Circuit Court of Appeals held that, while an employee failed to report alleged sexual harassment that occurred over four years, the employer's knowledge of her supervisor's multiple prior incidents negated its Faragher-Ellerth defense.

In this 2018 case, Minarsky v. Susquehanna County, a supervisor made unwanted sexual advances toward his secretary, Sheri Minarsky, for years. Minarsky, however, did not report her supervisor's conduct because: 1) she feared his reaction; 2) she knew he had been previously reprimanded for similar incidents, but continued the behavior; 3) her supervisor warned her not to trust other supervisors; and 4) she thought she would be terminated. Eventually, Minarsky complained to a coworker, who reported the supervisor's conduct. The supervisor was then terminated. Minarsky later sued the supervisor and her employer, asserting claims for gender discrimination, sexual harassment and hostile work environment.

The district court dismissed Minarksy's lawsuit based on its finding that the employer had satisfied both elements of the Faragher-Ellerth defense. Specifically, the district court granted summary judgment on all of Minarsky's claims because it determined that her employer acted reasonably by maintaining an anti-harassment policy, reprimanding the supervisor for his prior incidents of harassment, and terminating him after his conduct toward Minarsky was revealed. The district court also held that Minarsky's failure to report the harassment was unreasonable.

The Third Circuit Court of Appeals reversed the district court's ruling, however, and held that an employee's failure to report...